My partner was given the sack the other day for gross misconduct.

Customer Question

My partner was given the sack the other day for gross misconduct. He was driving his bus and a boy came out from the footpath on his bike and hit the bus. The police are charing him for illegally riding his bike on a footpath but my partner got the sack because they said he didn't stop the bus.

The bus was just rolling up to the traffic lights and he was hit by the bike he looked to see what the noise was and then put his handbrake on as the boy came from his blind side of the bus. His employers say his bus was moving when he hit the boy but in fact the boy hit him. This was before Christmas, he went in for his first shift back on the Saturday and they said we might have to terminate your employment we are suspending you so we can investigate and sent him home until the Tuesday. He went to see them on Tuesday and they suspended him again until the Friday he went in and explained it all to them they they said they didn't care if the police were going to charge the boy it wasn't up to them and his 19 + years service would not be taken into consideration (he was bus driver of the year several times and No 1 bus driver in the depot), this wasn't taken into account either. They said they wanted his badge back and his uniform and he was to leave the depot and wasn't to come near it until he picks the paperwork up this Wednesday.

Can you tell me if the above is fair. There was a witness on the bus and she said that the bus was stationery when the boy hit the bus (they didn't contact her) and they gave him no notice in writing and I think he should of had a notice period isn't it 1 1/2 weeks for every year of service over 12 years.

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

When did the incident happen please?

JACUSTOMER-lk68d0nj- :

It happened a couple of weeks before Christmas, the police attended and said they weren't going to take any thing further and the boy on bike left the scene before the ambulance had arrived saying he didn't need it.

JACUSTOMER-lk68d0nj- :

My partner told his bosses they came out to look and didn't say anything and so when he went to go back to work in the January it came as a shock to be told they were suspending him.

Ben Jones :

OK, thank you, please leave this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

JACUSTOMER-lk68d0nj- :

ok thank you

JACUSTOMER-lk68d0nj- :

he is under so much stress and he has to go an pick up the minutes etc on Wednesday in the depot

Ben Jones :

It is probably best if I discuss the law on dismissals on grounds of misconduct, what the employer is expected to do and what a tribunal would look at to determine if this was a fair dismissal.

Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:

Conducts a reasonable investigation;

Follows a fair disciplinary procedure;

Has reasonable grounds for believing the employee was guilty; and

Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.

In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:

1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.

3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.

If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.

As to the notice he is due, then unless he is dismissed for gross misconduct he is entitled to receive his contractual notice period, which cannot be less than 1 week for every full year of service, up to a maximum of 12. So the minimum he can expect for 19+ years of service is 12 weeks, unless his contract says he is to get more.

JACUSTOMER-lk68d0nj- :

Hi, so this notice period does that mean they sack him but then say they should pay him for the 12 weeks?

JACUSTOMER-lk68d0nj- :

He has never been disciplined at any time whilst working for the company for 19 years, impeccable record. No sickness either

JACUSTOMER-lk68d0nj- :

Like I said he was bus driver of the year

JACUSTOMER-lk68d0nj- :

He was told on the Saturday and the hearing was on Tuesday and he didn't know what the allegations were

JACUSTOMER-lk68d0nj- :

No one else had been dismissed for this reason

Ben Jones :

Yes, unless the dismissal was for gross misconduct he can expect to be paid for the notice period, but the issue is they have claimed it is gross misconduct.

Ben Jones :

At this stage all he can do is appeal with the employer and see what the outcome of that is

Ben Jones :

after that he must consider whether to take this to the tribunal

JACUSTOMER-lk68d0nj- :

so does he get nothing? can they just sack him that day

JACUSTOMER-lk68d0nj- :

Where can I get a letter of appeal so we know that we are writing it properly

JACUSTOMER-lk68d0nj- :

Would you say that if the appeal doesn't work he would stand a good chance of winning a tribunal?

Ben Jones :

well legally there is nothing stopping them from sacking him there and then and refusing to pay him notice - even if that is found to be illegal later, it is for him to challenge them and take the matter further. There is no such thing as letter of appeal - he has to write to them and state he wants to appeal then list the reasons on which he is appealing, so that will obviously vary from case to case. As to the chances of winning at tribunal these are impossible to predict and I am in no position to make a guess on that, you need to get a solicitor to conduct a full case analysis before you get any idea of prospects of success

JACUSTOMER-lk68d0nj- :

oh dear, thank you, you haven't really told me anything that my friends have to be honest and they aren't solicitors or lawyers.

Ben Jones :

Well I have told you his legal rights and if that is what you have already heard then obviously it serves as confirmation that what you know is correct. but I cannot make up things that do not exist or give you prospects of success which is impossible to do when I have a few paragraphs of information to work with

Ben Jones :

I can easily tell you, go ahead and claim, he has a 100% chance of success, because it is what you would like to hear but that would not only be against the rules of this service but also unprofessional

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